On July 12, 2022, a Delaware federal district court ordered the United States to share a draft of its amended complaint in a federal regulatory enforcement action. The court’s order renders moot Walmart’s motion to dismiss the government’s original complaint. That complaint faulted Walmart pharmacies for filling, and for failing to notify the Drug Enforcement Administration about, allegedly “suspicious” prescriptions. DOJ seeks to impose billions of dollars in liability on Walmart without proving that any employee whose conduct gave rise to the action had any knowledge of wrongdoing. In an amicus brief joined also by the U.S. Chamber of Commerce and the National Retail Federation, WLF had urged the trial court to reject the DOJ’s “collective scienter” approach to liability. As WLF’s brief explained, DOJ’s approach to scienter was not only wrong, it would have far-reaching, unintended consequences. WLF’s brief was prepared by Megan Brown, Stephen J. Obermeier, Christopher Kelly, and Wesley E. Weeks, of Wiley Rein LLP.
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